State ex rel. Flanagan v. South Dakota Rural Credits Board

189 N.W. 704 | S.D. | 1922

SMITH, J.

This is a proceeding in the name of the State ■of South Dakota, upon the relation of one Walter J. Flanagan, 'against'the South Dakota Rural Credits 'Board and thé individual members thereof, and against. Byron S. Payne, as Attorney General, seeking a writ of mandamus compelling the said officers “to forthwith prepare and-, file,, in duplicate, full reports of its transactions and conduct of its affairs for each of 'the fiscal years ending on June 30, 1918, 1919, 1920, and 1921,” and- requiring “that said reports contain the following necessary information/’ to-wit: (1) Bond issues,' specifying 16 particulars; (2) bond interest, specifying 10 particulars; (3) special warrants, specifying 19 particulars; (4) mortgage loans made, specifying .16 particulars; (5.) depositaries of funds, specifying 10 particulars, subdivided into active and inactive deposits, specifying some 23 particulars; (6) a detailed summary statement of as'sets and liabilities as of June 30, 1921.

By consent in open court, the proceedings were dismissed as to the Attorney General. In view of the fact that defendants have raised no issue as to the right of-relator, Flanagan, to maintain this action, we are not called upon to consider, and do not pass upon, that question at this time.

After admitting the merely formal allegations of the complaint, defendants’ answer alleges that during every fiscal year since the organization of the board it has issued bonds authorized by the law under which the board operates, and before each-issue has furnished the Governor a financial statement showing the conditions of the business of the board, which statement, in each instance, showed the total applications for loans, the amount thereof, the number of loans and the amount, the number of applications approved, the number under investigation, the number of applications canceled, and bonds issued, showing date, series, and amount; also a statement .of the resources of the board, including the following items: Farm loans, interest paid ón bonds, officers’ and employees’ salaries, legal expenditures, postagé and office expenses, expenses on examination of land, furniture and fixtures, miscellaneous expenses, cash in hands of treasurer,' statei treasurer’s balance of appropriation,’ and discount on bonds, which statement also contains a statement of the liabilities of the board, including th§ items: State appropriation, rural credits bonds sold, accrued interest on bonds, interest on average daily balances, interest received on mortgages, interest received on delinquent installments, premium received on bonds, and interest received on state warrants.

Defendants further allege that in every instance where bonds have been issued, the board has, immediately after such issue, submitted to the Governor of the state, a full statement of such issue; that each such statement shows a copy of the resolutions of the board authorizing and directing the issuance of such bonds, and shows the amount of bonds, the rate of interest, date of issue, when due, a form of the bonds, and a copy of the resolution of sale of the bonds and the contract entered into with the purchaser; that the said statements and reports were filed in the office of the Governor, and a copy thereof transmitted to the secretary of state and filed in his office as a permanent record, subject to examination by the public at any time. The defendants tender to the court, as a part of the return, copies of all financial statements and reports made at the time of the respective bond issues. Defendants further allege that no warrants have ever been issued by the board for the purpose of 'borrowing money at any time since its organization.

Defendants further allege that, in addition to the statements above referred to, the board did on June 30, 1920, file in the office of the Governor a full report of its business for the preceding fiscal years from the date of its organization, which report was made in accordance with the provisions of section 10153, R. C. 1919, as amended by chapter 304, § 2, Session Laws 1919, and in accordance with the requirements of section 7067, R. G. 1919, which annual reports were in accordance with the provisions of law referred to, requiring that they be made “in the most condensed form”; that said annual statements showed the total receipts and disbursements of the board for the fiscal years ending June 30, 1918, June 30, 1919, and June 30, 1920, and the total cash on hand, the amount received from sale of bonds and accrued interest, the amount of interest received on average daily balances, the vouchers returned and canceled, and the amount drawn from legislative appropriations; that the disbursements shown in such reports include the amount of farm loans, less payments, interest paid on bonds, salaries, legal expenses, postage, and supplies, expenses of examination of land, furniture and fixtures, miscellaneous expenses, and discount on bonds; that each of said statements included a statement of resources and liabilities of the board for each of said fiscal years; the items of resources shown were farm loans, interest paid on bonds, officers’ aftd employees’ salaries, legal expenses and office expenses, expense of examination of land, furniture and fixtures, miscellaneous expenses, cash on hand, balance of appropriation in hands of state treasurer, and discount on 'bonds; that the liabilities, in each instance, embrace the total appropriations, bonds, accrued interest on bonds, interest on average daily balances, and return vouchers canceled; that the statement filed in the office of the Governor on June 30, 1920, contains an itemized statement showing the loans made from July 1, 1917, the date of the organization of the board, to June 30, 1920, the counties in which such loans were made, the number of loans in each county, the amount of money loaned in each county, the number of acres in every county held as security for loans, and the average amount loaned per acre in each county; that on January 1, 1921, there was filed in the office of the Governor a supplemental statement and report showing the same things above referred to from June 30, 1920, to December 31, 1920, and all of said reports are in the office of the Governor, are public records, and may be examined by the public, and the defendants tender copies of said reports so on file; that all of said reports were made in condensed form because of the provisions of section 7067, 'Rev. Code 1919, which, according to the understanding of the board, prohibited any itemized or detailed report, and for the further reason that section 7068, Rev. Code 1919, prohibits the commissioner of public printing from accepting a report of any state official or board which is not made in the condensed form required by section 7067, and for no other reason; that the names of borrowers and the amount loaned to each were omitted from said reports, because such information is a matter of public record in each county in the state where mortgages are filed and recorded, and are subject to examination by any person interested; that an itemized statement of each receipt and expenditure in detail, showing the date of receipt of payment, the person to whom paid, the purpose for which paid, and the amount thereof, were omitted from the annual statements filed with the Governor because of the provisions of sections 7067 and 7068, Rev. Code 1919, which prohibit the use of public funds for the printing of such items; that section 5347, Rev. Code 1919, requiring publication of itemized statements of receipts and expenditures through the office of the state auditor, do not apply to the rural credits board, for the reason that the state auditor is not required to keep accounts of the rural credits board, and no itemized vouchers are required to 'be filed in his office; that the executive accountant is made by la-wl the auditing officer of the rural credits hoard and the law does not require the filing or publication of itemized statements of the receipts and expenditures of the rural credits board, and does not authorize the use of public funds for that purpose.

Defendants further allege that they have made monthly statements to the executive accountant on forms,.provided by him, which have been audited by said accountant, who has also made an examination of the affairs of the board, including all its receipts and expenditures, regularly, at the time and in the manner provided by law, and that copies of the reports of such accountant have been filed with the Governor and the rural credits board as required by law, which reports are public records.

Section 12, art. 11, of the Constitution, provides:

“An' accurate statement of the receipts- and 1 expenditures of the public moneys shall be published annually, in such manner as the Legislature may provide.”

Section 4, art. 12, of the Constitution, further provides:

“An itemized statement of all receipts and expenditures of the public moneys shall be published annually in such manner as the Legislature shall provide, and such statement shall be submitted to the Legislature at the beginning of- each regular session by the Governor with his message.”

While these provisions of the -Constitution are mandatory upon the Legislature, they are not self-executing. The rule is clearly and concisely .stated in 6 R. C. L. 67 (52) :

“A clear distinction exists between the question ,as to.whether a constitutional provision is mandatory or directory, and whether it is self-executing or requires legislation in order to give it effect. A provision may be mandatory without being self-executing. * * * A constitutional provision is self-executing where no legislation is necessary-to give it effect.”

Id., p. 61, § 57:

“In adopting Constitutions, the people frequently leave to the Legislature the enactment of statutes as to detailed matters, in order to make the provisions fully operative. * * * Where the constitutional provisions wholly omit the detailed provisions needed to make them effective, the rule is established that they will not be considered as self-executing.” State ex rel v. Burkhart, 44 S. D. 285, 183 N. W. 870.

The constitutional command that itemized statements of receipts and disbursements of public moneys shall be published annually is directed to the legislative branch of the government, and connot be executed without legislative action. The Constitution pontains no mandate to any public officer or board, directing such officer or board to make reports, or prescribing the contents, or the time, place, or manner of making and filing reports. All matters preliminary to the publication of “an itemized statement of all receipts and expenditures of the public moneys,” required by the Constitution, are left to be prescribed by the Legislature, and until the Legislature directs the particular officers or boards to make such reports, and prescribes the contents, and tfie time, place, and manner of making them, no official duty in that behalf arises, and in the absence of such legislation the court could not by mandamus, “compel the performance of an act which the law specifically enjoins as a duty resulting from an ■office,” etc.

We are of the view that the sections of the Constitution above referred to are mandatory upon the Legislature to enact provisions for the making and filing of such reports or statements as the Constitution requires, and for publishing them annually. But no rule of constitutional law is more firmly established than that which declares that the judicial department of the state government is without jurisdiction or authority to compel the Legislature, a co-ordinate branch of the government, to enact legislation required by constitutional provisions. State v. Bolte, 151 Mo. 362, 52 S. W. 262, 74 Am. St. Rep. 537. In that case the court said:

“Where the action of the Legislature is within its legislative power, it cannot be controlled by the judiciary by mandamus, or in any other way, for to do so would be the usurpation of a power which does not belong to the latter.”

It necessarily follows that no legal duty was created on the part of officers or boards receiving and dispursing public moneys to make reports or statements thereof, until the Legislature acted and prescribed the contents of and the time, place, and manner in which such reports should be made, and, finally, when the Legislature acted, the duties of 'such officers and boards which could be enforced by mandamus could be none other than those specifically prescribed by the Legislature.-

The office of the writ is not to- create duties, but to require the performance of duties already existing. State v. Wilson, 123 Ala. 259, 26 South. 482, 45 L. R. A. 772. And it is equally clear that no officer or board could be absolved from the duty of making, or could justify a refusal to make, such reports as the statute requires, on the ground that the Legislature had failed to require itemized statements or reports in conformity with the mandate of the Constitution. But it is also clear that, since statutes have been enacted, statements or reports substantially conforming therewith are required from every public officer, board, or person who, by law, is authorized to receive and expend public moneys for any purpose, and that such statutes create official duties which may be enforced by mandamus.

Section 7067, Rev. Code 1919, provides:

“Every state officer, board .and institution required to make an annual or biennial report to the Governor, shall make the same' in the most condensed form, giving only such information as is necessary to fully disclose the transactions and conduct of such officer, hoard or institution during the -period covered hy such report, which period shall end on the 30th of June preceding the filing of such report.”

And section 6923, Rev. Code 1919, requires that all reports made by state officers or 'boards to' the Governor shall be made in fluplicate form complete for publication, etc., and shall be supplied to the printing commissioner by such officer or board, who is required, forthwith, to furnish copy to the printer having the contract, and section 7068, Rev. Code 1919, provides that the printing commissioner shall refuse to accept the reports of any state officer, board, or institution which do not comply with the provisions of this Code, and requires him to return such report to the officer, board, or commissioner making the same, to be completely revised in accordance with section 7067.

There are no provisions in the Constitution requiring or commanding any board or fiscal officer of the state to -publish reports of its official transactions. But the Legislature has enacted statutes providing for the making and filing of reports and has placed the duty of publishing such reports upon the 'bureau of public printing. See Code 19.19,tit. 6, pt. 10, c. 2, art. 2, §§ 6911-6933. Section 6923, Rev. Code 1919, provides that:

“All reports made by state officers or boards to the Governor shall be made in duplicate form, complete for publication, exclusive of index, which shall be supplied to the commissioner -by such officer or 'board within two weeks after receipt of printed dummy.”

The commissioner is required, forthwith, to furnish copy to the printer having the contract, etc. Other provisions of title 6, pt. 10, c. 2, art. 2, Rev. Code 1919, supra, specify the number of such statements or reports to be printed, and the manner of distribution thereof. The' boards and fiscal officers who are required to file statements or reports are not required to print, publish, or distribute the same, and no duty in that behalf is cast upon them, either by the Constitution or by any legislative enactment.

It follows that all the numerous allegations of the complaint charging defendants with neglect of official duty in failing to print and publish reports of the transactions of the board and distribute the same in public libraries and other places specified in the statute are wholly immaterial to any issue before us and require no further consideration.

The complaint, also contains numerous charges of official misconduct, such as attempts to stifle competitive bidding -on rural credit bonds, depositing rural credit funds in banks in which members of the board are stockholders, and granting loans to officials and politicians “not entitled to be beneficiaries of said trust funds”; that the-funds have been so handled-as to render the business of the board insolvent, with appended tables of calculations and computations claimed to show such conditions. We are unable to comprehend the purpose for which these charges and allegations were made a part of the complaint. Every lawyer understands that the writ of mandamus can be invoked only “to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station,” etc. (section 3006, R. C. 1919), and that this court is without jurisdiction or authority to issue its mandate, except to compel performance of some specific act or duty required by law.

“Mandamus is not an appropriate remedy to compel a general course of official conduct or a long series of continuous acts, .as it is impossible for the court to oversee the performance of such duties. The proper function of a mandamus is to compel the doing of a specific thing; something which can be neither diminished or subdivided.” Coal Co. v. State of Oklahoma ex rel Marshall, 31 Okl. 629, 122 Pac. 194, 39 L. R. A. (N. S.) 810, and note.

In view of the fact that plaintiff in the prayer of the complaint demands no other relief, than that defendants be required to “forthwith prepare and file in duplicate full reports of its transactions and the conduct of its affairs for each of the fiscal years ending on June 30th in 19x8, 1919, 1920, and 1921,” specifying particulars which he claims should be disclosed by_ such statements or reports, it seems clear that he fully understands the character and limitations of the writ demanded. For this reason, the purpose of the extended charges of official misconduct, malfeasance, and business incompetency on the part of the rural credits board, embodied in the complaint, is not apparent to us, and the same require no discussion or consideration. Such irrelevant matters in no way affect, extend, or limit the duty to make the statements or reports required by law^.

.Section 10x53, Rev. Code 1919, as amended by chapter 304, § 2, Laws of 1919, provides:

“Before issuing any such warrants or bonds it shall he the duty of the board to furnish the Governor a financial statement, showing the condition of the business of the board, and such other and further information as may be required by him, which statement shall be filed in the office of the Governor and a copy thereof shall then be -transmitted to the secretary of state, to be filed and kept by him as a permanent record of his office, * * * and to make to the Governor, annually, at the time and in the manner provided by sections 6922 and 7067, a full report of its business for the preceding fiscal year, with such general information and recommendations as may to the board seem proper. It shall be the duty of such board to make a monthly statement of its business upon such form as may be required by the executive accountant, and it shall be the duty of such accountant to audit such statements and make a written report thereon, which shall be filed in his office as a permanent record, a copy of which shall be forthwith transmitted to the Governor and to the secretary of such board.”

Section 1016Ó, Rev. Code 1919, provides:

“It shall be the duty of the board, assisted by the executive accountant and superintendent of banks, to prescribe and maintain in the office of such board such system of books, records, accounts, receipts, vouchers and documents required to separate and verify each transaction and forms for reports and statements required for the administration of the officers of the board or for the information of the public, as such board and assistants shall deem proper and necessary for the same and convenient conduct of the business of the board.”

In the light of the various provisions of the Code above referred to, it is entirely clear that the Legislature has not provided and did not intend to provide that the annual report to be filed with the Governor and published by the printing commission should be an itemized report of “the receipts and disbursements of all public moneys,” but did intend to require “a full report of its business for the preceding fiscal year,” a report “in the most condensed form, giving only such information as is necessary to fully disclose the transactions and conduct of such * * * board * * * during the [annual] period covered by such report.” Rev. Code 1919, § 7067.

And furthermore, by section 10166, Rev. Code 1919, it is made the duty of the board, assisted by the executive accountant and superintendent of banks, to prescribe a system of bookkeeping and accounting, and to prescribe “forms for reports and statements required for the administration of the officers of the board or for the information of the public, as such board and assistants shall deem proper and necessary for the sáfe and convenient conduct of the business of the board.” In the light of this section, we must presume that the reports that have been made have been in the form prescribed by the board, with the assistance of the executive accountant and the superintendent of banks.

It was and is the legal duty of the board to comply with these provisions of the statute—a duty which may 'be enforced by mandamus. The reports referred to in the answer and offered in evidence are so numerous that we cannot attempt to discuss them in detail, but after a careful examination thereof we must be content to say that, in substance, they constitute compliance with the statutes requiring a condensed report and statement of the business and transactions of the board, except that such reports for the years 1917 to 1920 were not filed annually as required by the statute, and with the further exception that the report covering the period from June 30, 1920, to Decémber 31, 1920, does not purport to be the annual report required. Of course, this court, at this time, is without power to rectify the-failure of the board to file annual reports at the time required by statute; but, as the board has failed to file an annual report for the period from. June 30, 1920, to June 30, 192:1, it becomes- the duty of the court to issue its mandate requiring the filing of such report.

Such mandate will issue.

ANDERSON, J., taking no part in this decision.